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of Russell v. Quinn, 444 P.2d 353 (Cal. 1968). In Estate of Heim
v. Commissioner, supra at 1329-1330, the Court of Appeals for the
Ninth Circuit observed:
Furthermore, we cannot avoid the statutory directive
that a “marital deduction gift” is “a gift that is
intended to qualify for the marital deduction,” Probate
Code section 1030(d), and that “whether the will
contains a marital deduction gift depends upon the
intention of the testator at the time the will is
executed.” Prob. Code sec. 1032(a) (West 1991).6
California Probate Code section 215227 acts to conform any
“power, duty, or discretionary authority” in a testamentary
instrument to comport with the requirements of a marital
deduction, if the instrument contains a marital deduction gift.
California Probate Code section 21520 (West 1991)8 defines a
6Cal. Prob. Code secs. 1030, 1032 (repealed) are the
predecessors to Cal. Prob. Code secs. 21520 and 21522 (West
1991). Estate of Heim v. Commissioner, 914 F.2d 1322, 1329-1330
(9th Cir. 1990), affg. T.C. Memo. 1988-433.
7Sec. 21522. MARITAL DEDUCTION GIFTS
If an instrument contains a marital deduction gift:
(a) The provisions of the instrument, including any
power, duty, or discretionary authority given to a
fiduciary, shall be construed to comply with the marital
deduction provisions of the Internal Revenue Code.
(b) The fiduciary shall not take any action or have any
power that impairs the deduction as applied to the marital
deduction gift.
(c) The marital deduction gift may be satisfied only
with property that qualifies for the marital deduction.
8Cal. Prob. Code sec. 21520 provides:
(continued...)
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